AN ARGUMENT MADE IN THE SUPREME COURT OF THE UNITED STATES, ON THE 27TH
OF JANUARY, 1848, IN THE DORR REBELLION CASES.
[The facts necessary to the understanding of these cases are
sufficiently set forth in the commencement of Mr. Webster's argument.
The event out of which the cases arose is known in popular language as
the _Dorr Rebellion_. The first case (that of Martin Luther against
Luther M. Borden and others) came up by writ of error from the Circuit
Court of Rhode Island, in which the jury, under the rulings of the court
(Mr. Justice Story), found a verdict for the defendants; the second case
(that of Rachel Luther against the same defendants) came up by a
certificate of a division of opinion. The allegations, evidence, and
arguments were the same in both cases.
The first case was argued by Mr. Hallet and Mr. Clifford
(Attorney-General) for the plaintiffs in error, and by Mr. Whipple and
Mr. Webster for the defendants in error. Mr. Justice Catron, Mr. Justice
Daniel, and Mr. Justice McKinley were absent from the court, in
consequence of ill health. Chief Justice Taney delivered the opinion of
the court, affirming the judgment of the court below in the first case,
and dismissing the second for want of jurisdiction. Mr. Justice Woodbury
dissented, and delivered a very elaborate opinion in support of his view
of the subject.]
There is something novel and extraordinary in the case now before the
court. All will admit that it is not such a one as is usually presented
for judicial consideration.
It is well known, that in the years 1841 and 1842 political agitation
existed in Rhode Island. Some of the citizens of that State undertook to
form a new constitution of government, beginning their proceedings
towards that end by meetings of the people, held without authority of
law, and conducting those proceedings through such forms as led them, in
1842, to say that they had established a new constitution and form of
government, and placed Mr. Thomas W. Dorr at its head. The previously
existing, and then existing, government of Rhode Island treated these
proceedings as nugatory, so far as they went to establish a new
constitution; and criminal, so far as they proposed to confer authority
upon any persons to interfere with the acts of the existing government,
or to exercise powers of legislation, or administration of the laws. All
will remember that the state of things approached, if not actual
conflict between men in arms, at least the "perilous edge of battle."
Arms were resorted to, force was used, and greater force threatened. In
June, 1842, this agitation subsided. The new government, as it called
itself, disappeared from the scene of action. The former government, the
Charter government, as it was sometimes styled, resumed undisputed
control, went on in its ordinary course, and the peace of the State was
restored.
But the past had been too serious to be forgotten. The legislature of
the State had, at an early stage of the troubles, found it necessary to
pass special laws for the punishment of the persons concerned in these
proceedings. It defined the crime of treason, as well as smaller
offences, and authorized the declaration of martial law. Governor King,
under this authority, proclaimed the existence of treason and rebellion
in the State, and declared the State under martial law. This having been
done, and the ephemeral government of Mr. Dorr having disappeared, the
grand juries of the State found indictments against several persons for
having disturbed the peace of the State, and one against Dorr himself
for treason. This indictment came on in the Supreme Court of Rhode
Island in 1844, before a tribunal admitted on all hands to be the legal
judicature of the State. He was tried by a jury of Rhode Island, above
all objection, and after all challenge. By that jury, under the
instructions of the court, he was convicted of treason, and sentenced to
imprisonment for life.
Now an action is brought in the courts of the United States, and before
your honors, by appeal, in which it is attempted to prove that the
characters of this drama have been oddly and wrongly cast; that there
has been a great mistake in the courts of Rhode Island. It is alleged,
that Mr. Dorr, instead of being a traitor or an insurrectionist, was the
real governor of the State at the time; that the force used by him was
exercised in defence of the constitution and laws, and not against them;
that he who opposed the constituted authorities was not Mr. Dorr, but
Governor King; and that it was _he_ who should have been indicted, and
tried, and sentenced. This is rather an important mistake, to be sure,
if it be a mistake. "Change places," cries poor Lear, "_change places_,
and _handy-dandy_, which is the justice and which the thief?" So our
learned opponents say, "Change places, and, _handy-dandy_, which is the
governor and which the rebel?" The aspect of the case is, as I have
said, novel. It may perhaps give vivacity and variety to judicial
investigations. It may relieve the drudgery of perusing briefs,
demurrers, and pleas in bar, bills in equity and answers, and introduce
topics which give sprightliness, freshness, and something of an uncommon
public interest to proceedings in courts of law.
However difficult it may be, and I suppose it to be _wholly_ impossible,
that this court should take judicial cognizance of the questions which
the plaintiff has presented to the court below, yet I do not think it a
matter of regret that the cause has come hither. It is said, and truly
said, that the case involves the consideration and discussion of what
are the true principles of government in our American system of public
liberty. This is very right. The case does involve these questions, and
harm can never come from their discussion, especially when such
discussion is addressed to reason and not to passion; when it is had
before magistrates and lawyers, and not before excited masses out of
doors. I agree entirely that the case does raise considerations,
somewhat extensive, of the true character of our American system of
popular liberty; and although I am constrained to differ from the
learned counsel who opened the cause for the plaintiff in error, on the
principles and character of that American liberty, and upon the true
characteristics of that American system on which changes of the
government and constitution, if they become necessary, are to be made,
yet I agree with him that this case does present them for consideration.
Now, there are certain principles of public liberty, which, though they
do not exist in all forms of government, exist, nevertheless, to some
extent, in different forms of government. The protection of life and
property, the _habeas corpus_, trial by jury, the right of open trial,
these are principles of public liberty existing in their best form in
the republican institutions of this country, but, to the extent
mentioned, existing also in the constitution of England. Our American
liberty, allow me to say, therefore, has an ancestry, a pedigree, a
history. Our ancestors brought to this continent all that was valuable,
in their judgment, in the political institutions of England, and left
behind them all that was without value, or that was objectionable.
During the colonial period they were closely connected of course with
the colonial system; but they were Englishmen, as well as colonists, and
took an interest in whatever concerned the mother country, especially in
all great questions of public liberty in that country. They accordingly
took a deep concern in the Revolution of 1688. The American colonists
had suffered from the tyranny of James the Second. Their charters had
been wrested from them by mockeries of law, and by the corruption of
judges in the city of London; and in no part of England was there more
gratification, or a more resolute feeling, when James abdicated and
William came over, than in the American colonies. All know that
Massachusetts immediately overthrew what had been done under the reign
of James, and took possession of the colonial fort in the harbor of
Boston in the name of the new king.
When the United States separated from England, by the Declaration of
1776, they departed from the political maxims and examples of the mother
country, and entered upon a course more exclusively American. From that
day down, our institutions and our history relate to ourselves. Through
the period of the Declaration of Independence, of the Confederation, of
the Convention, and the adoption of the Constitution, all our public
acts are records out of which a knowledge of our system of American
liberty is to be drawn.
From the Declaration of Independence, the governments of what had been
colonies before were adapted to their new condition. They no longer owed
allegiance to crowned heads. No tie bound them to England. The whole
system became entirely popular, and all legislative and constitutional
provisions had regard to this new, peculiar, American character, which
they had assumed. Where the form of government was already well enough,
they let it alone. Where reform was necessary, they reformed it. What
was valuable, they retained; what was essential, they added, and no
more. Through the whole proceeding, from 1776 to the latest period, the
whole course of American public acts, the whole progress of this
American system, was marked by a peculiar conservatism. The object was
to do what was necessary, and no more; and to do that with the utmost
temperance and prudence.
Now, without going into historical details at length, let me state what
I understand the American principles to be, on which this system rests.
First and chief, no man makes a question, that the people are the source
of all political power. Government is instituted for their good, and its
members are their agents and servants. He who would argue against this
must argue without an adversary. And who thinks there is any peculiar
merit in asserting a doctrine like this, in the midst of twenty millions
of people, when nineteen millions nine hundred and ninety-nine thousand
nine hundred and ninety-nine of them hold it, as well as himself? There
is no other doctrine of government here; and no man imputes to another,
and no man should claim for himself, any peculiar merit for asserting
what everybody knows to be true, and nobody denies. Why, where else can
we look but to the people for political power, in a popular government?
We have no hereditary executive, no hereditary branch of the
legislature, no inherited masses of property, no system of entails, no
long trusts, no long family settlements, no primogeniture. Every estate
in the country, from the richest to the poorest, is divided among sons
and daughters alike. Alienation is made as easy as possible; everywhere
the transmissibility of property is perfectly free. The whole system is
arranged so as to produce, as far as unequal industry and enterprise
render it possible, a universal equality among men; an equality of
rights absolutely, and an equality of condition, so far as the different
characters of individuals will allow such equality to be produced. He
who considers that there may be, is, or ever has been, since the
Declaration of Independence, any person who looks to any other source of
power in this country than the people, so as to give peculiar merit to
those who clamor loudest in its assertion, must be out of his mind, even
more than Don Quixote. His imagination was only perverted. He saw things
not as they were, though what he saw were things. He saw windmills, and
took them to be giants, knights on horseback. This was bad enough; but
whoever says, or speaks as if he thought, that anybody looks to any
other source of political power in this country than the people, must
have a stronger and wilder imagination, for he sees nothing but the
creations of his own fancy. He stares at phantoms.
Well, then, let all admit, what none deny, that the only source of
political power in this country is the people. Let us admit that they
are _sovereign_, for they are so; that is to say, the aggregate
community, the collected will of the people, is sovereign. I confess
that I think Chief Justice Jay spoke rather paradoxically than
philosophically, when he said that this country exhibited the
extraordinary spectacle of many sovereigns and no subjects. The people,
he said, are all sovereigns; and the peculiarity of the case is that
they have no subjects, except a few colored persons. This must be rather
fanciful. The aggregate community is sovereign, but that is not _the_
sovereignty which acts in the daily exercise of sovereign power. The
people cannot act daily as the people. They must establish a government,
and invest it with so much of the sovereign power as the case requires;
and this sovereign power being delegated and placed in the hands of the
government, that government becomes what is popularly called THE STATE.
I like the old-fashioned way of stating things as they are; and this is
the true idea of a state. It is an organized government, representing
the collected will of the people, as far as they see fit to invest that
government with power. And in that respect it is true, that, though
_this_ government possesses sovereign power, it does not possess _all_
sovereign power; and so the State governments, though sovereign in some
respects, are not so in all. Nor could it be shown that the powers of
both, as delegated, embrace the whole range of what might be called
sovereign power. We usually speak of the States as sovereign States. I
do not object to this. But the Constitution never so styles them, nor
does the Constitution speak of the government here as the _general_ or
the _federal_ government. It calls this government the United States;
and it calls the State governments State governments. Still the fact is
undeniably so; legislation is a sovereign power, and is exercised by the
United States government to a certain extent, and also by the States,
according to the forms which they themselves have established, and
subject to the provisions of the Constitution of the United States.
Well, then, having agreed that all power is originally from the people,
and that they can confer as much of it as they please, the next
principle is, that, as the exercise of legislative power and the other
powers of government immediately by the people themselves is
impracticable, they must be exercised by REPRESENTATIVES of the people;
and what distinguishes American governments as much as any thing else
from any governments of ancient or of modern times, is the marvellous
felicity of their representative system. It has with us, allow me to
say, a somewhat different origin from the representation of the commons
in England, though that has been worked up to some resemblance of our
own. The representative system in England had its origin, not in any
supposed rights of the people themselves, but in the necessities and
commands of the crown. At first, knights and burgesses were summoned,
often against their will, to a Parliament called by the king. Many
remonstrances were presented against sending up these representatives;
the charge of paying them was, not unfrequently, felt to be burdensome
by the people. But the king wished their counsel and advice, and perhaps
the presence of a popular body, to enable him to make greater headway
against the feudal barons in the aristocratic and hereditary branch of
the legislature. In process of time these knights and burgesses assumed
more and more a popular character, and became, by degrees, the guardians
of popular rights. The people through them obtained protection against
the encroachments of the crown and the aristocracy, till in our day they
are understood to be the representatives of the people, charged with the
protection of their rights. With us it was always just so.
Representation has always been of this character. The power is with the
people; but they cannot exercise it in masses or _per capita_; they can
only exercise it by their representatives. The whole system with us has
been popular from the beginning.
Now, the basis of this representation is suffrage. The right to choose
representatives is every man's part in the exercise of sovereign power;
to have a voice in it, if he has the proper qualifications, is the
portion of political power belonging to every elector. That is the
beginning. That is the mode in which power emanates from its source, and
gets into the hands of conventions, legislatures, courts of law, and the
chair of the executive. It begins in suffrage. Suffrage is the
delegation of the power of an individual to some agent.
This being so, then follow two other great principles of the American
system.
1. The first is, that the right of suffrage shall be guarded, protected,
and secured against force and against fraud; and,
2. The second is, that its exercise shall be prescribed by previous law;
its qualifications shall be prescribed by previous law; the time and
place of its exercise shall be prescribed by previous law; the manner of
its exercise, under whose supervision (always sworn officers of the
law), is to be prescribed. And then, again, the results are to be
certified to the central power by some certain rule, by some known
public officers, in some clear and definite form, to the end that two
things may be done: first, that every man entitled to vote may vote;
second, that his vote may be sent forward and counted, and so he may
exercise his part of sovereignty, in common with his fellow-citizens.
In the exercise of political power through representatives we know
nothing, we never have known any thing, but such an exercise as should
take place through the prescribed forms of law. When we depart from
that, we shall wander as widely from the American track as the pole is
from the track of the sun.
I have said that it is one principle of the American system, that the
people limit their governments, National and State. They do so; but it
is another principle, equally true and certain, and, according to my
judgment of things, equally important, that the people often _limit
themselves_. They set bounds to their own power. They have chosen to
secure the institutions which they establish against the sudden impulses
of mere majorities. All our institutions teem with instances of this. It
was their great conservative principle, in constituting forms of
government, that they should secure what they had established against
hasty changes by simple majorities. By the fifth article of the
Constitution of the United States, Congress, two thirds of both houses
concurring, may propose amendments of the Constitution; or, on the
application of the legislatures of two thirds of the States, may call a
convention; and amendments proposed in either of these forms must be
ratified by the legislatures or conventions of three fourths of the
States. The fifth article of the Constitution, if it was made a topic
for those who framed the "people's constitution" of Rhode Island, could
only have been a matter of reproach. It gives no countenance to any of
their proceedings, or to any thing like them. On the contrary, it is one
remarkable instance of the enactment and application of that great
American principle, that the constitution of government should be
cautiously and prudently interfered with, and that changes should not
ordinarily be begun and carried through by bare majorities.
But the people limit themselves also in other ways. They limit
themselves in the first exercise of their political rights. They limit
themselves, by all their constitutions, in two important respects; that
is to say, in regard to the qualifications of _electors_, and in regard
to the qualifications of the _elected_. In every State, and in all the
States, the people have precluded themselves from voting for everybody
they might wish to vote for; they have limited their own right of
choosing. They have said, We will elect no man who has not such and such
qualifications. We will not vote ourselves, unless we have such and such
qualifications. They have also limited themselves to certain prescribed
forms for the conduct of elections. They must vote at a particular
place, at a particular time, and under particular conditions, or not at
all. It is in these modes that we are to ascertain the will of the
American people; and our Constitution and laws know no other mode. We
are not to take the will of the people from public meetings, nor from
tumultuous assemblies, by which the timid are terrified, the prudent are
alarmed, and by which society is disturbed. These are not American modes
of signifying the will of the people, and they never were. If any thing
in the country, not ascertained by a regular vote, by regular returns,
and by regular representation, has been established, it is an exception,
and not the rule; it is an anomaly which, I believe, can scarcely be
found.
It is true that at the Revolution, when all government was immediately
dissolved, the people got together, and what did they do? Did they
exercise sovereign power? They began an inceptive organization, the
object of which was to bring together representatives of the people, who
should form a government. This was the mode of proceeding in those
States where their legislatures were dissolved. It was much like that
had in England upon the abdication of James the Second. He ran away, he
abdicated. He threw the great seal into the Thames. I am not aware that,
on the 4th of May, 1842, any great seal was thrown into Providence
River! But James abdicated, and King William took the government; and
how did he proceed? Why, he at once requested all who had been members
of the old Parliament, of any regular Parliament in the time of Charles
the Second, to assemble. The Peers, being a standing body, could of
course assemble; and all they did was to recommend the calling of a
convention, to be chosen by the same electors, and composed of the same
numbers, as composed a Parliament. The convention assembled, and, as all
know, was turned into a Parliament. This was a case of necessity, a
revolution. Don't we call it so? And why? Not merely because a new
sovereign then ascended the throne of the Stuarts, but because there was
a change in the organization of the government. The legal and
established succession was broken. The convention did not assemble under
any preceding law. There was a _hiatus_, a syncope, in the action of the
body politic. This was revolution, and the Parliaments that assembled
afterwards referred their legal origin to that revolution.
Is it not obvious enough, that men cannot get together and count
themselves, and say they are so many hundreds and so many thousands, and
judge of their own qualifications, and call themselves the people, and
set up a government? Why, another set of men, forty miles off, on the
same day, with the same propriety, with as good qualifications, and in
as large numbers, may meet and set up another government; one may meet
at Newport and another at Chepachet, and both may call themselves the
people. What is this but anarchy? What liberty is there here, but a
tumultuary, tempestuous, violent, stormy liberty, a sort of South
American liberty, without power except in its spasms, a liberty
supported by arms to-day, crushed by arms to-morrow? Is that _our_
liberty?
The regular action of popular power, on the other hand, places upon
public liberty the most beautiful face that ever adorned that angel
form. All is regular and harmonious in its features, and gentle in its
operation. The stream of public authority, under American liberty,
running in this channel, has the strength of the Missouri, while its
waters are as transparent as those of a crystal lake. It is powerful for
good. It produces no tumult, no violence, and no wrong;--
"Though deep, yet clear; though gentle, yet not dull;
Strong, without rage; without o'erflowing, full."
Another American principle growing out of this, and just as important
and well settled as is the truth that the people are the source of
power, is, that, when in the course of events it becomes necessary to
ascertain the will of the people on a new exigency, or a new state of
things or of opinion, the legislative power provides for that
ascertainment by an ordinary act of legislation. Has not that been our
whole history? It would take me from now till the sun shall go down to
advert to all the instances of it, and I shall only refer to the most
prominent, and especially to the establishment of the Constitution under
which you sit. The old Congress, upon the suggestion of the delegates
who assembled at Annapolis in May, 1786, recommended to the States that
they should send delegates to a convention to be holden at Philadelphia
to form a Constitution. No article of the old Confederation gave them
power to do this; but they did it, and the States did appoint delegates,
who assembled at Philadelphia, and formed the Constitution. It was
communicated to the old Congress, and that body recommended to the
States to make provision for calling the people together to act upon its
adoption. Was not that exactly the case of passing a law to ascertain
the will of the people in a new exigency? And this method was adopted
without opposition, nobody suggesting that there could be any other mode
of ascertaining the will of the people.
My learned friend went through the constitutions of several of the
States. It is enough to say, that, of the old thirteen States, the
constitutions, with but one exception, contained no provision for their
own amendment. In New Hampshire there was a provision for taking the
sense of the people once in seven years. Yet there is hardly one that
has not altered its constitution, and it has been done by conventions
called by the legislature, as an ordinary exercise of legislative power.
Now what State ever altered its constitution in any other mode? What
alteration has ever been brought in, put in, forced in, or got in
anyhow, by resolutions of mass meetings, and then by applying force? In
what State has an assembly, calling itself the people, convened without
law, without authority, without qualifications, without certain
officers, with no oaths, securities, or sanctions of any kind, met and
made a constitution, and called it the constitution of the STATE? There
must be some authentic mode of ascertaining the will of the people, else
all is anarchy. It resolves itself into the law of the strongest, or,
what is the same thing, of the most numerous for the moment, and all
constitutions and all legislative rights are prostrated and disregarded.
But my learned adversary says, that, if we maintain that the people (for
he speaks in the name and on behalf of the people, to which I do not
object) cannot commence changes in their government but by some previous
act of legislation, and if the legislature will not grant such an act,
we do in fact follow the example of the Holy Alliance, "the doctors of
Laybach," where the assembled sovereigns said that all changes of
government must proceed from sovereigns; and it is said that we mark out
the same rule for the people of Rhode Island.
Now will any man, will my adversary here, on a moment's reflection,
undertake to show the least resemblance on earth between what I have
called the American doctrine, and the doctrine of the sovereigns at
Laybach? What do I contend for? I say that the will of the people must
prevail, when it is ascertained; but there must be some legal and
authentic mode of ascertaining that will; and then the people may make
what government they please. Was that the doctrine of Laybach? Was not
the doctrine there held this,--that the _sovereigns_ should say what
changes shall be made? Changes must proceed from them; new constitutions
and new laws emanate from them; and all the people had to do was to
submit. That is what they maintained. All changes began with the
sovereigns, and ended with the sovereigns. Pray, at about the time that
the Congress of Laybach was in session, did the allied powers put it to
the people of Italy to say what sort of change they would have? And at a
more recent date, did they ask the citizens of Cracow what change they
would have in their constitution? Or did they take away their
constitution, laws, and liberties, by their own sovereign act? All that
is necessary here is, that the will of the people should be ascertained,
by some regular rule of proceeding, prescribed by previous law. But when
ascertained, that will is as sovereign as the will of a despotic prince,
of the Czar of Muscovy, or the Emperor of Austria himself, though not
quite so easily made known. A ukase or an edict signifies at once the
will of a despotic prince; but that will of the people, which is here as
sovereign as the will of such a prince, is not so quickly ascertained or
known; and thence arises the necessity for suffrage, which is the mode
whereby each man's power is made to tell upon the constitution of the
government, and in the enactment of laws.
One of the most recent laws for taking the will of the people in any
State is the law of 1845, of the State of New York. It begins by
recommending to the people to assemble in their several election
districts, and proceed to vote for delegates to a convention. If you
will take the pains to read that act, it will be seen that New York
regarded it as an ordinary exercise of legislative power. It applies all
the penalties for fraudulent voting, as in other elections. It punishes
false oaths, as in other cases. Certificates of the proper officers were
to be held conclusive, and the will of the people was, in this respect,
collected essentially in the same manner, supervised by the same
officers, under the same guards against force and fraud, collusion and
misrepresentation, as are usual in voting for State or United States
officers.
We see, therefore, from the commencement of the government under which
we live, down to this late act of the State of New York, one uniform
current of law, of precedent, and of practice, all going to establish
the point that changes in government are to be brought about by the will
of the people, assembled under such legislative provisions as may be
necessary to ascertain that will, truly and authentically.
In the next place, may it please your honors, it becomes very important
to consider what bearing the Constitution and laws of the United States
have upon this Rhode Island question. Of course the Constitution of the
United States recognizes the existence of States. One branch of the
legislature of the United States is composed of Senators, appointed by
the States, in their State capacities. The Constitution of the United
States[1] says that "the United States shall guarantee to each State a
republican form of government, and shall protect the several States
against invasion; and on application of the legislature, or of the
executive when the legislature cannot be convened, against domestic
violence." Now, I cannot but think this a very stringent article,
drawing after it the most important consequences, and all of them _good_
consequences. The Constitution, in the section cited, speaks of States
as having existing legislatures and existing executives; and it speaks
of cases in which violence is practised or threatened against the State,
in other words, "domestic violence"; and it says the State shall be
protected. It says, then, does it not? that the existing government of a
State shall be protected. My adversary says, if so, and if the
legislature would not call a convention, and if, when the people rise
to make a constitution, the United States step in and prohibit them,
why, the rights and privileges of the people are checked, controlled.
Undoubtedly. The Constitution does not proceed on the _ground_ of
revolution; it does not proceed on any _right_ of revolution; but it
does go on the idea, that, within and under the Constitution, no new
form of government can be established in any State, without the
authority of the existing government.
Admitting the legitimacy of the argument of my learned adversary, it
would not authorize the inference he draws from it, because his own case
falls within the same range. He has proved, he thinks, that there was an
existing government, a paper government, at least; a rightful
government, as he alleges. Suppose it to be rightful, in his sense of
right. Suppose three fourths of the people of Rhode Island to have been
engaged in it, and ready to sustain it. What then? How is it to be done
without the consent of the previous government? How is the fact, that
three fourths of the people are in favor of the new government, to be
legally ascertained? And if the existing government deny that fact, and
if that government hold on, and will not surrender till displaced by
force, and if it is threatened by force, then the case of the
Constitution arises, and the United States must aid the government that
is in, because an attempt to displace a government by force is "domestic
violence." It is the exigency provided for by the Constitution. If the
existing government maintain its post, though three fourths of the State
have adopted the new constitution, is it not evident enough that the
exigency arises in which the constitutional power here must go to the
aid of the existing government? Look at the law of 28th February,
1795.[2] Its words are, "And in case of an insurrection in any State,
_against the government thereof_, it shall be lawful for the President
of the United States, on application of the legislature of such State,
or of the executive (when the legislature cannot be convened), to call
forth such number of the militia of any other State or States, as may be
applied for, as he may judge sufficient to suppress such insurrection."
Insurrection against the _existing_ government is, then, the thing to be
suppressed.
But the law and the Constitution, the whole system of American
institutions, do not contemplate a case in which a resort will be
necessary to proceedings _aliunde_, or outside of the law and the
Constitution, for the purpose of amending the frame of government. They
go on the idea that the States are all republican, that they are all
representative in their forms, and that these popular governments in
each State, the annually created creatures of the people, will give all
proper facilities and necessary aids to bring about changes which the
people may judge necessary in their constitutions. They take that ground
and act on no other supposition. They assume that the popular will in
all particulars will be accomplished. And history has proved that the
presumption is well founded.
This, may it please your honors, is the view I take of what I have
called the American system. These are the methods of bringing about
changes in government.
Now, it is proper to look into this record, and see what the questions
are that are presented by it, and consider,--
1. Whether the case is one for judicial investigation at all; that is,
whether this court can try the matters which the plaintiff has offered
to prove in the court below; and,
2. In the second place, whether many things which he did offer to prove,
if they could have been and had been proved, were not acts of
criminality, and therefore no justification; and,
3. Whether all that was offered to be proved would show that, in point
of fact, there had been established and put in operation any new
constitution, displacing the old charter government of Rhode Island.
The declaration is in trespass. The writ was issued on the 8th of
October, 1842, in which Martin Luther complains that Luther M. Borden
and others broke into his house in Warren, Rhode Island, on the 29th of
June, 1842, and disturbed his family and committed other illegal acts.
The defendant answers, that large numbers of men were in arms, in Rhode
Island, for the purpose of overthrowing the government of the State, and
making war upon it; and that, for the preservation of the government and
people, martial law had been proclaimed by the Governor, under an act of
the legislature, on the 25th of June, 1842. The plea goes on to aver,
that the plaintiff was aiding and abetting this attempt to overthrow the
government, and that the defendant was under the military authority of
John T. Child, and was ordered by him to arrest the plaintiff; for which
purpose he applied at the door of his house, and being refused entrance
he forced the door.
The action is thus for an alleged trespass, and the plea is
justification under the law of Rhode Island. The plea and replications
are as usual in such cases in point of form. The plea was filed at the
November term of 1842, and the case was tried at the November term of
1843, in the Circuit Court in Rhode Island. In order to make out a
defence, the defendant offered the charter of Rhode Island, the
participation of the State in the Declaration of Independence, its
uniting with the Confederation in 1778, its admission into the Union in
1790, its continuance in the Union and its recognition as a State down
to May, 1843, when the constitution now in force was adopted. Here let
it be particularly remarked, that Congress admitted Rhode Island into
the Constitution under this identical old charter government, thereby
giving sanction to it as a republican form of government. The defendant
then refers to all the laws and proceedings of the Assembly, till the
adoption of the present constitution of Rhode Island. To repel the case
of the defendant, the plaintiff read the proceedings of the old
legislature, and documents to show that the idea of changing the
government had been entertained as long ago as 1790. He read also
certain resolutions of the Assembly in 1841, memorials praying changes
in the constitution, and other documents to the same effect. He next
offered to prove that suffrage associations were formed throughout the
State in 1840 and 1841, and that steps were taken by them for holding
public meetings; and to show the proceedings had at those meetings. In
the next place, he offered to prove that a mass convention was held at
Newport, attended by over four thousand persons, and another at
Providence, at which over six thousand attended, at which resolutions
were passed in favor of the change. Then he offered to prove the
election of delegates; the meeting of the convention in October, 1841,
and the draughting of the Dorr constitution; the reassembling in 1841,
the completion of the draught, its submission to the people, their
voting upon it, its adoption, and the proclamation on the 13th of
January, 1842, that the constitution so adopted was the law of the land.
That is the substance of what was averred as to the formation of the
Dorr constitution. The plaintiff next offered to prove that the
constitution was adopted by a large majority of the qualified voters of
the State; that officers were elected under it in April, 1842; that this
new government assembled on the 3d of May; and he offered a copy of its
proceedings. He sets forth that the court refused to admit testimony
upon these subjects, and to these points; and ruled that the old
government and laws of the State were in full force and power, and then
existing, when the alleged trespass was made, and that they justified
the acts of the defendants, according to their plea.
I will give a few references to other proceedings of this new
government. The new constitution was proclaimed on the 13th of January,
1842, by some of the officers of the convention. On the 13th of April,
officers were appointed under it, and Mr. Dorr was chosen governor. On
Tuesday, the 3d of May, the new legislature met, was organized, and
then, it is insisted, the new constitution became the law of the land.
The legislature sat through that whole day, morning and evening;
adjourned; met the next day, and sat through all that day, morning and
evening, and did a great deal of paper business. It went through the
forms of choosing a Supreme Court, and transacting other business of a
similar kind, and on the evening of the 4th of May it adjourned, to meet
again on the first Monday of July, in Providence,
"And word spake never more."
It never reassembled. This government, then, whatever it was, came into
existence on the _third_ day of May, and went out of existence on the
_fourth_ day of May.
I will now give some references concerning the new constitution
authorized by the government, the old government, and which is now the
constitution of Rhode Island. It was framed in November, 1842. It was
voted upon by the people on the 21st, 22d, and 23d days of November, was
then by them accepted, and became by its own provisions the constitution
of Rhode Island on the first Tuesday of May, 1843.
Now, what, in the mean time, had become of Mr. Dorr's government?
According to the principle of its friends, they are forced to admit that
it was superseded by the new, that is to say, the present government,
because the people accepted the new government. But there was no new
government till May, 1843. According to them, then, there was an
_interregnum_ of a whole year. If Mr. Dorr had had a government, what
became of it? If it ever came in, what put it out of existence? Why did
it not meet on the day to which it had adjourned? It was not displaced
by the new constitution, because that had not been agreed upon in
convention till November. It was not adopted by the people till the last
of November, and it did not go into operation till May. What then had
become of Mr. Dorr's government?
I think it is important to note that the new constitution, established
according to the prescribed forms, came thus into operation in May,
1843, and was admitted by all to be the constitution of the State. What
then happened in the State of Rhode Island? I do not mean to go through
all the trials that were had after this ideal government of Mr. Dorr
ceased to exist; but I will ask attention to the report of the trial of
Dorr for treason, which took place in 1844, before all the judges of the
Supreme Court of the State. He was indicted in August, 1842, and the
trial came on in March, 1844. The indictment was found while the charter
government was in force, and the trial was had under the new
constitution. He was found guilty of treason.
And I turn to the report of the trial now, to call attention to the
language of the court in its charge, as delivered by Chief Justice
Durfee. I present the following extract from that charge:--
"It may be, Gentlemen, that he really believed himself to be the
governor of the State, and that he acted throughout under this
delusion. However this may go to extenuate the offence, it does not
take from it its legal guilt. It is no defence to an indictment for
the violation of any law for the defendant to come into court and
say, 'I thought that I was but exercising a constitutional right,
and I claim an acquittal on the ground of mistake,' Were it so,
there would be an end to all law and all government. Courts and
juries would have nothing to do but to sit in judgment upon
indictments, in order to acquit or excuse. The accused has only to
prove that he has been systematic in committing crime, and that he
thought that he had a right to commit it; and, according to this
doctrine, you must acquit. The main ground upon which the prisoner
sought for a justification was, that a constitution had been
adopted by a majority of the male adult population of this State,
voting in their primary or natural capacity or condition, and that
he was subsequently elected, and did the acts charged, as governor
under it. He offered the votes themselves to prove its adoption,
which were also to be followed by proof of his election. This
evidence we have ruled out. Courts and juries, Gentlemen, do not
count votes to determine whether a constitution has been adopted or
a governor elected, or not. Courts take notice, without proof
offered from the bar, what the constitution is or was, and who is
or was the governor of their own State. It belongs to the
legislature to exercise this high duty. It is the legislature
which, in the exercise of its delegated sovereignty, counts the
votes and declares whether a constitution be adopted or a governor
elected, or not; and we cannot revise and reverse their acts in
this particular, without usurping their power. Were the votes on
the adoption of our present constitution now offered here to prove
that it was or was not adopted; or those given for the governor
under it, to prove that he was or was not elected; we could not
receive the evidence ourselves, we could not permit it to pass to
the jury. And why not? Because, if we did so, we should cease to be
a mere judicial, and become a political tribunal, with the whole
sovereignty in our hands. Neither the people nor the legislature
would be sovereign. We should be sovereign, or you would be
sovereign; and we should deal out to parties litigant, here at our
bar, sovereignty to this or that, according to rules or laws of our
own making, and heretofore unknown in courts.
"In what condition would this country be, if appeals could be thus
taken to courts and juries? _This_ jury might decide one way, and
_that_ another, and the sovereignty might be found here to-day, and
there to-morrow. Sovereignty is above courts or juries, and the
creature cannot sit in judgment upon its creator. Were this
instrument offered as the constitution of a foreign state, we
might, perhaps, under some circumstances, require proof of its
existence; but, even in that case, the fact would not be
ascertained by counting the votes given at its adoption, but by the
certificate of the secretary of state, under the broad seal of the
state. This instrument is not offered as a foreign constitution,
and this court is bound to know what the constitution of the
government is under which it acts, without any proof even of that
high character. We know nothing of the existence of the so-called
'people's constitution' as law, and there is no proof before you of
its adoption, and of the election of the prisoner as governor under
it; and you can return a verdict only on the evidence that has
passed to you."
Having thus, may it please your honors, attempted to state the questions
as they arise, and having referred to what has taken place in Rhode
Island, I shall present what further I have to say in three
propositions:--
1st. I say, first, that the matters offered to be proved by the
plaintiff in the court below are not of judicial cognizance; and proof
of them, therefore, was properly rejected by the court.
2d. If all these matters could be, and had been, legally proved, they
would have constituted no defence, because they show nothing but an
_illegal_ attempt to overthrow the government of Rhode Island.
3d. No proof was offered by the plaintiff to show that, in fact, another
government had gone into operation, by which the Charter government had
become displaced.
And first, these matters are not of judicial cognizance. Does this need
arguing? Are the various matters of fact alleged, the meetings, the
appointment of committees, the qualifications of voters,--is there any
one of all these matters of which a court of law can take cognizance in
a case in which it is to decide on sovereignty? Are fundamental changes
in the frame of a government to be thus proved? The thing to be proved
is a change of the sovereign power. Two legislatures existed at the same
time, both claiming power to pass laws. Both could not have a legal
existence. What, then, is the attempt of our adversaries? To put down
one sovereign government, and to put another up, by facts and
proceedings in regard to elections out of doors, unauthorized by any law
whatever. Regular proceedings for a change of government may in some
cases, perhaps, be taken notice of by a court; but this court must look
elsewhere than out of doors, and to public meetings, irregular and
unauthorized, for the decision of such a question as this. It naturally
looks to that authority under which it sits here, to the provisions of
the Constitution which have created this tribunal, and to the laws by
which its proceedings are regulated. It must look to the acts of the
government of the United States, in its various branches.
This Rhode Island disturbance, as everybody knows, was brought to the
knowledge of the President of the United States[3] by the public
authorities of Rhode Island; and how did he treat it? The United States
have guaranteed to each State a republican form of government. And a law
of Congress has directed the President, in a constitutional case
requiring the adoption of such a proceeding, to call out the militia to
put down domestic violence, and suppress insurrection. Well, then,
application was made to the President of the United States, to the
executive power of the United States. For, according to our system, it
devolves upon the executive to determine, in the first instance, what
are and what are not governments. The President recognizes governments,
foreign governments, as they appear from time to time in the occurrences
of this changeful world. And the Constitution and the laws, if an
insurrection exists against the government of any State, rendering it
necessary to appear with an armed force, make it his duty to call out
the militia and suppress it.
Two things may here be properly considered. The first is, that the
Constitution declares that the United States shall protect every State
against domestic violence; and the law of 1795, making provision for
carrying this constitutional duty into effect in all proper cases,
declares, that, "in case of an insurrection in any State against the
government thereof, it shall be lawful for the President of the United
States to call out the militia of other States to suppress such
insurrection." These constitutional and legal provisions make it the
indispensable duty of the President to decide, in cases of commotion,
what is the rightful government of the State. He cannot avoid such
decision. And in this case he decided, of course, that the existing
government, the charter government, was the rightful government. He
could not possibly have decided otherwise.
In the next place, if events had made it necessary to call out the
militia, and the officers and soldiers of such militia, in protecting
the existing government, had done precisely what the defendants in this
case did, could an action have been maintained against them? No one
would assert so absurd a proposition.
In reply to the requisition of the Governor, the President stated that
he did not think it was yet time for the application of force; but he
wrote a letter to the Secretary of War, in which he directed him to
confer with the Governor of Rhode Island; and, whenever it should appear
to them to be necessary, to call out from Massachusetts and Connecticut
a militia force sufficient to _terminate at once_ this insurrection, by
the authority of the government of the United States. We are at no loss,
therefore, to know how the executive government of the United States
treated this insurrection. It was regarded as fit _to be suppressed_.
That is manifest from the President's letters to the Secretary of War
and to Governor King.
Now, the eye of this court must be directed to the proceedings of the
general government, which had its attention called to the subject, and
which did institute proceedings respecting it. And the court will learn
from the proceedings of the executive branch of the government, and of
the two chambers above us, how the disturbances in Rhode Island were
regarded; whether they were looked upon as the establishment of any
government, or as a mere pure, unauthorized, unqualified _insurrection_
against the authority of the existing government of the State.
I say, therefore, that, upon that ground, these facts are not facts
which this court can inquire into, or which the court below could try;
because they are facts going to prove (if they prove any thing) the
establishment of a new sovereignty; and that is a question to be settled
elsewhere and otherwise. From the very nature of the case, it is not a
question to be decided by judicial inquiry. Take, for example, one of
the points which it involves. My adversary offered to prove that the
constitution was adopted by a majority of the people of Rhode Island; by
a large majority, as he alleges. What does this offer call on your
honors to do? Why, to ascertain, by proof, what is the number of
citizens of Rhode Island, and how many attended the meetings at which
the delegates to the convention were elected; and then you have to add
them all up, and prove by testimony the qualifications of every one of
them to be an elector. It is enough to state such a proposition to show
its absurdity. As none such ever was sustained in a court of law, so
none can be or ought to be sustained. Observe that minutes of
proceedings can be no proof, for they were made by no authentic persons;
registers were kept by no warranted officers; chairmen and moderators
were chosen without authority. In short, there are no official records;
there is no testimony in the case but parol. Chief Justice Durfee has
stated this so plainly, that I need not dwell upon it.
But, again, I say you cannot look into the facts attempted to be proved,
because of the certainty of the continuance of the old government till
the new and legal constitution went into effect on the 3d of May, 1843.
To prove that there was another constitution of two days' duration would
be ridiculous. And I say that the decision of Rhode Island herself, by
her legislature, by her executive, by the adjudication of her highest
court of law, on the trial of Dorr, has shut up the whole case. Do you
propose,--I will not put it in that form,--but would it be proper for
this court to reverse that adjudication? That declares that the judges
of Rhode Island know nothing of the "People's Constitution." Is it
possible, then, for this court, or for the court below, to know any
thing of it?
It appears to me that, if there were nothing else in the case, the
proceedings of Rhode Island herself must close everybody's mouth, in the
court and out of it. Rhode Island is competent to decide the question
herself, and everybody else ought to be bound by her decision. And she
has decided it.
And it is but a branch of this to say, according to my second
proposition,--
2. That if every thing offered had been proved, if in the nature of the
case these facts and proceedings could have been received as proof, the
court could not have listened to them, because every one of them is
regarded by the State in which they took place as a _criminal_ act. Who
can derive any authority from acts declared to be criminal? The very
proceedings which are now set up here show that this pretended
constitution was founded upon acts which the legislature of the State
had provided punishment for, and which the courts of the State have
punished. All, therefore, which the plaintiff has attempted to prove,
are acts which he was not allowed to prove, because they were criminal
in themselves, and have been so treated and punished, so far as the
State government, in its discretion, has thought proper to punish them.
3. Thirdly, and lastly, I say that there is no evidence offered, nor has
any distinct allegation been made, that there was an actual government
established and put in operation to displace the Charter government,
even for a single day. That is evident enough. You find the whole
embraced in those two days, the 3d and 4th of May. The French revolution
was thought to be somewhat rapid. That took _three_ days. But this work
was accomplished in two. It is all there, and what is it? Its birth, its
whole life, and its death were accomplished in forty-eight hours. What
does it appear that the members of this government did? Why, they voted
that A should be treasurer, and C, secretary, and Mr. Dorr, governor;
and chose officers of the Supreme Court. But did ever any man under that
authority attempt to exercise a particle of official power? Did any man
ever bring a suit? Did ever an officer make an arrest? Did any act
proceed from any member of this government, or from any agent of it, to
touch a citizen of Rhode Island in his person, his safety, or his
property, so as to make the party answerable upon an indictment or in a
civil suit? Never. It never performed one single act of government. It
never did a thing in the world! All was patriotism, and all was paper;
and with patriotism and with paper it went out on the 4th of May,
admitting itself to be, as all must regard it, a contemptible _sham_!
I have now done with the principles involved in this case, and the
questions presented on this record.
In regard to the other case, I have but few words to say. And, first, I
think it is to be regretted that the court below sent up such a list of
points on which it was divided. I shall not go through them, and shall
leave it to the court to say whether, after they shall have disposed of
the first cause, there is any thing left. I shall only draw attention to
the subject of martial law; and in respect to that, instead of going
back to martial law as it existed in England at the time the charter of
Rhode Island was granted, I shall merely observe that martial law
confers power of arrest, of summary trial, and prompt execution; and
that when it has been proclaimed, the land becomes a camp, and the law
of the camp is the law of the land. Mr. Justice Story defines martial
law to be the law of war, a resort to military authority in cases where
the civil law is not sufficient; and it confers summary power, not to be
used arbitrarily or for the gratification of personal feelings of hatred
or revenge, but for the preservation of order and of the public peace.
The officer clothed with it is to judge of the degree of force that the
necessity of the case may demand; and there is no limit to this, except
such as is to be found in the nature and character of the exigency.
I now take leave of this whole case. That it is an interesting incident
in the history of our institutions, I freely admit. That it has come
hither is a subject of no regret to me. I might have said, that I see
nothing to complain of in the proceedings of what is called the Charter
government of Rhode Island, except that it might perhaps have discreetly
taken measures at an earlier period for revising the constitution. If in
that delay it erred, it was the error into which prudent and cautious
men would fall. As to the enormity of freehold suffrage, how long is it
since Virginia, the parent of States, gave up her freehold suffrage? How
long is it since nobody voted for governor in New York without a
freehold qualification? There are now States in which no man can vote
for members of the upper branch of the legislature who does not own
fifty acres of land. Every State requires more or less of a property
qualification in its officers and electors; and it is for discreet
legislation, or constitutional provisions, to determine what its amount
shall be. Even the Dorr constitution had a property qualification.
According to its provisions, for officers of the State, to be sure,
anybody could vote; but its authors remembered that taxation and
representation go together, and therefore they declared that no man, in
any town, should vote to lay a tax for town purposes who had not the
means to pay his portion. It said to him, You cannot vote in the town of
Providence to levy a tax for repairing the streets of Providence; but
you may vote for governor, and for thirteen representatives from the
town of Providence, and send them to the legislature, and there they may
tax the people of Rhode Island at their sovereign will and pleasure.
I believe that no harm can come of the Rhode Island agitation in 1841,
but rather good. It will purify the political atmosphere from some of
its noxious mists, and I hope it will clear men's minds from unfounded
notions and dangerous delusions. I hope it will bring them to look at
the regularity, the order, with which we carry on what, if the word were
not so much abused, I would call our _glorious_ representative system of
popular government. Its principles will stand the test of this crisis,
as they have stood the test and torture of others. They are exposed
always, and they always will be exposed, to dangers. There are dangers
from the extremes of too much and of too little popular liberty; from
monarchy, or military despotism, on one side, and from licentiousness
and anarchy on the other. This always will be the case. The classical
navigator had been told that he must pass a narrow and dangerous strait:
"Dextrum Scylla latus, laevum implacata Charybdis,
Obsidet."
Forewarned he was alive to his danger, and knew, by signs not doubtful,
where he was, when he approached its scene:
"Et gemitum ingentem pelagi, pulsataque saxa,
Audimus longe, fractasque ad litora voces;
Exsultantque vada, atque aestu miscentur arenae.
... Nimirum haec ilia Charybdis!"
The long-seeing sagacity of our fathers enables us to know equally well
where we are, when we hear the voices of tumultuary assemblies, and see
the turbulence created by numbers meeting and acting without the
restraints of law; and has most wisely provided constitutional means of
escape and security. When the established authority of government is
openly contemned; when no deference is paid to the regular and authentic
declarations of the public will; when assembled masses put themselves
above the law, and, calling themselves the people, attempt by force to
seize on the government; when the social and political order of the
state is thus threatened with overthrow, and the spray of the waves of
violent popular commotion lashes the stars,--our political pilots may
well cry out:
"Nimirum haec illa Charybdis!"
The prudence of the country, the sober wisdom of the people, has thus
far enabled us to carry this Constitution, and all our constitutions,
through the perils which have surrounded them, without running upon the
rocks on one side, or being swallowed up in the eddying whirlpools of
the other. And I fervently hope that this signal happiness and good
fortune will continue, and that our children after us will exercise a
similar prudence, and wisdom, and justice; and that, under the Divine
blessing, our system of free government may continue to go on, with
equal prosperity, to the end of time.
[Footnote 1: Art. IV. § 4.]
[Footnote 2: Statutes at Large, Vol. I. p. 424.]
[Footnote 3: Mr. Tyler.]